K.M. v A.G. 2025 NY Slip Op 31222(U) April 11, 2025 Supreme Court, New York County Docket Number: Index No. 150939/2024 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150939/2024 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/11/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 150939/2024 K. M., MOTION DATE 02/01/2024 Plaintiff, MOTION SEQ. NO. 001 -v- A. G., SBIF LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 4, 6, 7, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 were read on this motion to/for MISC. SPECIAL PROCEEDINGS .
By order to show cause, plaintiff moves for an order permitting the use of the pseudonym
“K.M.” and the caption “K.M. v A.G. and SBIF LLC” in this action, and prohibiting the parties,
attorneys, and agents from publishing plaintiff’s true identity. Defendants oppose and, by notice
of cross-motion, move to dismiss the action based on documentary evidence and a failure to state
a cause of action against them, and awarding defendants counsel fees. Plaintiff opposes the
cross-motion.
I. MOTION TO SEAL
In her complaint, plaintiff alleges that defendant A.G. infected her with Human
Papillomavirus (HPV) during their romantic relationship without her knowledge or consent, and
that he did so when he knew or should have known he had HPV. The complaint further details
the parties’ relationship, including their sexual relations, and plaintiff’s prior sexual history
(NYSCEF 1).
Pursuant to 22 NYCRR § 216.1(a):
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a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.
In determining whether a plaintiff has good cause to proceed anonymously, the burden of
proof is lesser than that required for sealing the record (Doe v Szul, 2008 NY Slip Op 31382[U]
[Sup Ct, NY County 2008]). Nonetheless, the court must balance the movant’s privacy interest
against the presumption of open trials and against any potential prejudice to the defendant
(Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotations omitted]).
Moreover, the court “should . . . exercise its discretion to limit the public nature of
judicial proceedings ‘sparingly’ and ‘then, only when unusual circumstances necessitate it’” (id.,
citing Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept 2006]). “[C]laims of public
humiliation and embarrassment ... are not sufficient grounds for allowing a plaintiff ... to proceed
anonymously” (Lerner, 124 AD3d at 487-488, and cases cited therein]), even if the matter is of
no public interest (3 NY Prac Com Litig in NY State Courts, § 25.7 [4th ed], and authority cited
therein).
Generally, where allegations relate to sexually-transmitted diseases or sexual assault, the
plaintiff’s privacy rights are held to outweigh the public’s right to know (see e.g. Doe v Spencer
Cox Clinic, et al., 59 Misc 3d 1210[A], 2018 NY Slip Op 50461[U], *1 [Sup Ct, NY County
2018] [granting use of pseudonym where defendants accused of improperly disclosing plaintiff’s
health information including HIV status, history of sexually transmitted diseases, history of
sexual abuse and/or assault, and use of prescription drugs to treat those diseases]; see also
Anonymous v Duane Reade Inc., 10 Misc 3d 1056[A] [Sup Ct, Kings County 2005] [granting use
of pseudonym in matter involving disclosure of HIV status]).
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Here, given the allegations asserted in the complaint regarding a sexually-transmitted
disease, plaintiff has established her entitlement to an order permitting her to proceed by
pseudonym and directing that her true name not be disclosed during this litigation.
While defendants oppose the use of pseudonyms here, they inexplicably rely solely on
federal statutes and caselaw which are inapplicable in this state court action. Thus, their
opposition is not persuasive. In any event, there is no evidence that defendants are substantially
prejudiced by plaintiff’s use of a pseudonym (N.S. v Frankenhoff, 215 AD3d 592 [1st Dept 2023]
[defendant not prejudiced as he was aware of plaintiff’s identity]).
II. CROSS-MOTION TO DISMISS
“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal
construction,” and the court must “accept the facts as alleged in the [pleading] as true, accord [the
pleader] the benefit of every possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87 [1994]; see
CPLR § 3206). However, when the pleading’s “legal conclusions and factual allegations are flatly
contradicted by documentary evidence, they are not presumed to be true or accorded every
favorable inference, and the criterion becomes whether the proponent of the pleading has a cause
of action, not whether he has stated one” (Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d
74, 78 [1st Dept 2003] [internal quotation marks and citations omitted]).
Under that criterion and pursuant to CPLR § 3211(a)(1), the court must dismiss one or
more causes of action where “the documentary evidence submitted conclusively establishes a
defense to the asserted claims as a matter of law” (Liberty Sq. Realty Corp. v Doe Fund, Inc., 202
AD3d 55, 65 [1st Dept 2021] [internal quotation marks and citations omitted]).
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In addition, pursuant to CPLR § 3211(a)(7), the court must dismiss any cause of action
where “the [pleader] fails to assert facts in support of an element of the claim, or if the factual
allegations and inferences to be drawn from them do not allow for an enforceable right of recovery”
(Holder v Jacob, 231 AD3d 78, 86 [1st Dept 2024] [citation omitted]). When a defendant submits
evidence to support dismissal, the “inquiry [changes] from whether the pleader has stated a cause
of action to whether the pleader has a cause of action amenable to relief, or whether the defendant
has a complete defense to the claims” (id. [citations omitted]). In this context, the court will grant
dismissal when the evidence conclusively establishes defendant’s defense as a matter of law (id.).
In cross-moving to dismiss, defendants assert their reliance on documentary evidence,
namely, medical test results for defendant A.G.’s prior and most recent girlfriends, both named
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K.M. v A.G. 2025 NY Slip Op 31222(U) April 11, 2025 Supreme Court, New York County Docket Number: Index No. 150939/2024 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150939/2024 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/11/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 150939/2024 K. M., MOTION DATE 02/01/2024 Plaintiff, MOTION SEQ. NO. 001 -v- A. G., SBIF LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 4, 6, 7, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 were read on this motion to/for MISC. SPECIAL PROCEEDINGS .
By order to show cause, plaintiff moves for an order permitting the use of the pseudonym
“K.M.” and the caption “K.M. v A.G. and SBIF LLC” in this action, and prohibiting the parties,
attorneys, and agents from publishing plaintiff’s true identity. Defendants oppose and, by notice
of cross-motion, move to dismiss the action based on documentary evidence and a failure to state
a cause of action against them, and awarding defendants counsel fees. Plaintiff opposes the
cross-motion.
I. MOTION TO SEAL
In her complaint, plaintiff alleges that defendant A.G. infected her with Human
Papillomavirus (HPV) during their romantic relationship without her knowledge or consent, and
that he did so when he knew or should have known he had HPV. The complaint further details
the parties’ relationship, including their sexual relations, and plaintiff’s prior sexual history
(NYSCEF 1).
Pursuant to 22 NYCRR § 216.1(a):
150939/2024 M., K. vs. G., A. ET AL Page 1 of 6 Motion No. 001
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a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties.
In determining whether a plaintiff has good cause to proceed anonymously, the burden of
proof is lesser than that required for sealing the record (Doe v Szul, 2008 NY Slip Op 31382[U]
[Sup Ct, NY County 2008]). Nonetheless, the court must balance the movant’s privacy interest
against the presumption of open trials and against any potential prejudice to the defendant
(Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotations omitted]).
Moreover, the court “should . . . exercise its discretion to limit the public nature of
judicial proceedings ‘sparingly’ and ‘then, only when unusual circumstances necessitate it’” (id.,
citing Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept 2006]). “[C]laims of public
humiliation and embarrassment ... are not sufficient grounds for allowing a plaintiff ... to proceed
anonymously” (Lerner, 124 AD3d at 487-488, and cases cited therein]), even if the matter is of
no public interest (3 NY Prac Com Litig in NY State Courts, § 25.7 [4th ed], and authority cited
therein).
Generally, where allegations relate to sexually-transmitted diseases or sexual assault, the
plaintiff’s privacy rights are held to outweigh the public’s right to know (see e.g. Doe v Spencer
Cox Clinic, et al., 59 Misc 3d 1210[A], 2018 NY Slip Op 50461[U], *1 [Sup Ct, NY County
2018] [granting use of pseudonym where defendants accused of improperly disclosing plaintiff’s
health information including HIV status, history of sexually transmitted diseases, history of
sexual abuse and/or assault, and use of prescription drugs to treat those diseases]; see also
Anonymous v Duane Reade Inc., 10 Misc 3d 1056[A] [Sup Ct, Kings County 2005] [granting use
of pseudonym in matter involving disclosure of HIV status]).
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Here, given the allegations asserted in the complaint regarding a sexually-transmitted
disease, plaintiff has established her entitlement to an order permitting her to proceed by
pseudonym and directing that her true name not be disclosed during this litigation.
While defendants oppose the use of pseudonyms here, they inexplicably rely solely on
federal statutes and caselaw which are inapplicable in this state court action. Thus, their
opposition is not persuasive. In any event, there is no evidence that defendants are substantially
prejudiced by plaintiff’s use of a pseudonym (N.S. v Frankenhoff, 215 AD3d 592 [1st Dept 2023]
[defendant not prejudiced as he was aware of plaintiff’s identity]).
II. CROSS-MOTION TO DISMISS
“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal
construction,” and the court must “accept the facts as alleged in the [pleading] as true, accord [the
pleader] the benefit of every possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87 [1994]; see
CPLR § 3206). However, when the pleading’s “legal conclusions and factual allegations are flatly
contradicted by documentary evidence, they are not presumed to be true or accorded every
favorable inference, and the criterion becomes whether the proponent of the pleading has a cause
of action, not whether he has stated one” (Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d
74, 78 [1st Dept 2003] [internal quotation marks and citations omitted]).
Under that criterion and pursuant to CPLR § 3211(a)(1), the court must dismiss one or
more causes of action where “the documentary evidence submitted conclusively establishes a
defense to the asserted claims as a matter of law” (Liberty Sq. Realty Corp. v Doe Fund, Inc., 202
AD3d 55, 65 [1st Dept 2021] [internal quotation marks and citations omitted]).
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In addition, pursuant to CPLR § 3211(a)(7), the court must dismiss any cause of action
where “the [pleader] fails to assert facts in support of an element of the claim, or if the factual
allegations and inferences to be drawn from them do not allow for an enforceable right of recovery”
(Holder v Jacob, 231 AD3d 78, 86 [1st Dept 2024] [citation omitted]). When a defendant submits
evidence to support dismissal, the “inquiry [changes] from whether the pleader has stated a cause
of action to whether the pleader has a cause of action amenable to relief, or whether the defendant
has a complete defense to the claims” (id. [citations omitted]). In this context, the court will grant
dismissal when the evidence conclusively establishes defendant’s defense as a matter of law (id.).
In cross-moving to dismiss, defendants assert their reliance on documentary evidence,
namely, medical test results for defendant A.G.’s prior and most recent girlfriends, both named
Michelle, and both of whom tested negative for HPV, and defendant’s affidavit in which he
alleges that he does not have and never had HPV.
However, while defendant claims that his girlfriends’ test results are annexed as an
exhibit to his motion, the only filed test result is for someone with the first name of Christina, not
Michelle. In any event, no foundation was laid for the admissibility of this document.
Similarly, defendant’s affidavit does not constitute the type of documentary evidence that
may lead to dismissal of a pleading, given that he mainly disputes plaintiff’s version of events,
and thus does not utterly refute plaintiff’s factual allegations and establish a defense as a matter
of law (see Katsorhis v 718 W. Beech St., LLC, 234 AD3d 744 [2d Dept 2025] [affidavit did not
establish that material fact alleged in complaint was not fact at all and that no significant dispute
existed regarding it]; Wright v City of New York, 223 AD3d 547 [1st Dept 2024] [manager’s
affidavit did not constitute documentary evidence that conclusively established defense to
plaintiff’s complaint]).
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Defendants also do not establish that plaintiff failed to adequately plead a claim against
them for negligence, as she alleges in her complaint that A.G. knew or should have known that
he had H.P.V., and the facts underlying that claim are within defendants’ knowledge, not
plaintiff’s. Finally, whether or not plaintiff can recover the amount of damages she seeks in her
complaint is not a ground upon which to dismiss the complaint.
III. CONCLUSION
Accordingly, it is hereby
ORDERED that plaintiff’s motion to proceed by pseudonym is granted, and all papers
filed in this action shall refer to plaintiff only as “K.M. “plaintiff,” “she,” or “her,” and to
defendant A.G. as “A.G.,” “defendant,” “he,” and “him,” and all exhibits or other documents
submitted to the court shall be redacted so as to exclude any identifying information that could
reasonably lead to the plaintiff's name; and it is further
ORDERED that the parties and their counsel and agents, and the New York County
Clerk, shall refrain from disclosing plaintiff's name to any person(s) not a party to this action,
other than witnesses, potential witnesses, or any person believed to have knowledge related to
the parties' claims or defenses in this action. However, plaintiff's full name may be provided to
any doctor, practitioner, social worker and/or medical/health care provider and/or governmental
agency which has and/or may have information and/or documents relating to the plaintiff's
claims and/or defenses in this action. All authorizations provided by plaintiff's attorney shall
bear the actual full name of plaintiff; it is further
ORDERED that defendants’ motion to dismiss is denied, and they are directed to file an
answer within 20 days of the date of this order; and it is further
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ORDERED that the parties appear for a preliminary conference on June 24, 2025 at 9:30
am, at 71 Thomas Street, Room 305, New York, New York.
4/11/2025 DATE DAVID B. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
150939/2024 M., K. vs. G., A. ET AL Page 6 of 6 Motion No. 001
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